Curry, Jennings take lead in Supreme Court brief on transgender-bathroom policies

[Episcopal News Service] Presiding Bishop Michael Curry and House of Deputies President the Rev. Gay Clark Jennings are the lead signers on an amicus brief filed March 2 by 1,800 clergy and religious leaders in a U.S. Supreme Court case involving transgender-bathroom use policies.

Presiding Bishop Michael Curry and House of Deputies President the Rev. Gay Clark Jennings, shown here at the Executive Council’s October 2016 meeting, say they anchored their decision to be the lead signers on a U.S. Supreme Court amicus brief in the theological understanding that all people are created in the image of God and thus entitled to equal protection under the law. Photo: Mary Frances Schjonberg/Episcopal News Service

The “friend of the court” brief comes in the case of G.G. v. Gloucester County School Board, which the American Civil Liberties Union and its Virginia chapter filed on behalf of Gavin Grimm and his mother, Deirdre Grimm, in June 2015.

The signers urge the high court to see that the ability to live in a country that guarantees transgender equality is a religious freedom issue. They said their faith communities have approached issues related to gender identity in different ways, but are “united in believing that the fundamental human dignity shared by all persons requires treating transgender students like Respondent Gavin Grimm in a manner consistent with their gender identity.”

The signers urged the court to address the civil rights of transgender persons according to religiously neutral constitutional principles of equal protection under the law. Doing so, they said, “will not impinge upon religious belief, doctrine, or practice” and instead will adhere to the Constitution’s prohibition against favoring one religious viewpoint over any others.

Curry anchored his support of the brief in Genesis 1:26-27, which declares that every human person is created in the image and likeness of God.

“This divine decree proclaims the inherent sacredness, dignity, worth, and equality of every human person, by virtue of their creation imago Dei,” he said. “The way of love for God and our neighbor that Jesus taught is the way to honor the sacredness, dignity and worth and equality of each person. For this reason, we work for the equality and dignity of transgender people, who, like the rest of us, are created in God’s image and likeness.”

Jennings said Jesus tells his followers to love God and love their neighbor as themselves. “And, he tells us not to be afraid. The Episcopal Church affirms the victory of love over fear by supporting local, state and federal laws that prevent discrimination based on gender identity or gender expression,” she said.

That support dates at least to General Convention’s 2009 meeting, when bishops and deputies passed Resolution D012 opposing laws that discriminate against people based on their gender identity. It was in that vein that the Church’s Executive Council said in June 2016 that it opposed North Carolina’s “Public Facilities Privacy & Security Act,” as well as “all legislation, rhetoric and policy rooted in the fear-based argument that protecting transgender people’s civil rights in the form of equal access to public accommodation puts other groups at risk.”

Jennings noted that the last resolve of council’s resolution (AN014 on page 8 here) encourages Episcopalians to work against legislation that discriminates against transgender people and for legislation that prevents such discrimination, and to communicate the church’s position to courts, policymakers and others across the United States.

“For the two of us to sign this amicus brief, that’s not a leap at all,” Jennings said. “We’ve already said as a church that’s what you do.”

The outline of the case

The case took shape in 2014 after Grimm and his mother told school administrators of his male gender identity at the beginning of his sophomore year. With their permission, he used the boys’ restroom for almost two months without any incident, according to the original complaint. However, some parents and other Gloucester County residents objected, prompting the school board to adopt a policy that limited students’ bathroom use to the one of “the corresponding biological genders” or “an alternative appropriate private facility.”

The complaint said the policy stigmatizes Grimm, who is now 18 and will graduate this year. He is the only student in the high school using the private bathroom and this practice marks him as different, isolates him and exposes him to “serious psychological harm,” according to the complaint.

The lawsuit argues the bathroom policy is unconstitutional under the Fourteenth Amendment, which guarantees equal protection under the law, and violates Title IX of the U.S. Education Amendments of 1972, a federal law prohibiting sex discrimination by schools.

ACLU attorneys asked the district state court for preliminary injunction in time for Gavin to be able to use the same restroom as other boys when classes resumed for the 2015-16 school year. The district court denied the request and dismissed the Title IX claim. The U.S. Court of Appeals for the Fourth Circuit overturned the lower court in August.

The Gloucester County School Board successfully petitioned the U.S. Supreme Court to review the appeals court decision. The Fourth Circuit’s ruling is on hold, pending the higher court’s ruling.

The case was complicated on Feb. 22 when President Donald Trump revoked the Obama administration’s interpretation that Title IX required schools to “treat transgender students consistent with their gender identity.” The next day the Supreme Court asked the main parties for their views on how the case should proceed. The Fourth Circuit Court of Appeals relied heavily on that guidance in its ruling.

Religious freedom is a main concern in the amicus brief. Permitting religiously based anti-transgender types of laws would enshrine religious beliefs in the country’s law and implicitly favor religious viewpoints that reject the existence of transgender persons over those who embrace such persons’ existence and dignity, the signers said.

“The First Amendment forbids both forms of religious favoritism,” they said.

“Here, a public school student who happens to be a transgender boy seeks no more than to use the same toilet facilities as every other boy in his school,” they said at the conclusion of the brief. “Forcing him instead to use stigmatizing separate facilities humiliates him for no apparent reason other than to appease religious views denying the existence of his gender identity.”

The signers said that causing Grimm such harm is inconsistent with their belief “as a matter of law, religious faith, and fundamental decency – that transgender students should be treated with equal dignity and respect.”

Jennings said the opposing claims of religious freedom were at the heart of hers and the presiding bishop’s interest in joining the brief. “We oppose all legislation that seeks to deny the God-given dignity, legal equality, and civil rights of transgender people,” she said. “We support transgender equality not in spite of our Christian faith, but because of it.”

Jennings said the brief very clearly says that religious freedom belongs to all Americans, not just one group’s theology.

Curry and Jennings have acted on Executive Council’s admonition to confront discriminatory laws before. Shortly after council acted in June, Curry and Jennings wrote to the Episcopal Church explaining their opposition to the North Carolina bill and saying that they had written to the state’s governor and members of the state’s General Assembly, calling on them to repeal the bill.

You miss the point, perhaps intentionally. Trans folks identify and live as the other gender. That is why they should be able to use the restroom appropriate for their gender identity. No one has advocated the elimination of separate restrooms.

How we organize our society around bathrooms seems to me to be more a matter of social convention than religious truth. With all due respect to our leadership, I think they are trying too hard to be relevant.

In my struggle to continue to see the church as relevant, this stand against religious bigotry is a strong reason why it is. As a trans person I can assure you that the issue is relevant to us, and not merely a struggle for the church to remain relevant.

I am most appreciative of your work on this issue. I have dealt with transgender patients and their families. It is always a difficult situation and there are lots of difficult decisions to be made, Now that we are better educated about sexuality and the brain, things are different. Sex is not always black and white. The best explanation I ever had was from a 9 year old boy. His biological parents had divorced. His father looked after him, and his mother was not much involved. His father underwent treatment to become female. The young man, said he used to be my Dad and now she’s my Mom. But it is the same person who has always taken care of me.

The leaders of the church keep finding more and more obtuse issues to proclaim and spend time on. As a cradle Episcopalian, I have no faith in the current or recently past leadership of the church. They continue to slide into more and more secular life issues, ignoring the place where they could truly help mankind: strengthening faith, teaching from the Bible, and enabling communities to have traditions which support our lives from birth to death. The ability to convolute some relationship between bathrooms and religious freedom is truly dizzying. Stick to at least 2 of the 3 basics: theology & tradition; you have no reasoning skills left.

Sherry, I agree with you whole-heartedly. Let these chaps think a bit about the feelings, especially of girls and women, of non-transgender persons. To transgendered folks, Just use the bathroom your physical equipment suggests and get on with your life. There is really more to think about than using the toilet!

Reverend, your comment, and Sherry’s, seem to me to better align with one of the more doctrinaire and traditional branches. One of the things I value about The Episcopal Church is the reasoned approach to real world issues.

Reverend, your comment, and Sherry’s, seem to me to better align with one of the more doctrinaire and traditional branches. One of the things I value about The Episcopal Church is the reasoned approach to real world issues.

I think it is entirely appropriate to have two separate bathrooms and is also entirely appropriate to allow people to use the one consistent with their identified gender identity. Trust me, no boy or girl is going to “identify” as another gender and dress like that gender just to use the restroom of that gender. I also think that it is entirely appropriate for the Episcopal Church to weigh in on this considering that the argument being made against it are primarily religious arguments.

With all due respect to PJCabbiness. But according to the duties of a bishop as outlined in the ordination services of a bishop. Several of the duties apply to this situation and the presiding bishop’s actions.

“Will you boldly proclaim and interpret the Gospel of
Christ, enlightening the minds and stirring up the
conscience of your people?
Answer
I will, in the power of the Spirit.
Bishop
As a chief priest and pastor, will you encourage and
support all baptized people in their gifts and
ministries, nourish them from the riches of God’s
grace, pray for them without ceasing, and celebrate
with them the sacraments of our redemption?
Answer
I will, in the name of Christ, the Shepherd and
Bishop of our souls.
Bishop
Will you guard the faith, unity, and discipline of the
Church?
Answer
I will, for the love of God.
Bishop
Will you share with your fellow bishops in the
government of the whole Church; will you sustain
your fellow presbyters and take counsel with them;
will you guide and strengthen the deacons and all
others who minister in the Church?
Answer
I will, by the grace given me.
Bishop
Will you be merciful to all, show compassion to the
poor and strangers, and defend those who have no
helper?
Answer
I will, for the sake of Christ Jesus.”

I am so proud that the Presiding Bishop and President of the House of Deputies have signed this amicus brief. I signed it as well. Like Gavin Grimm, I am a trans man, and while I have a hard time imagining what it might have been like to be openly trans in high school, I was gender non-conforming long before I came out as trans in my late twenties. I remember well how incredibly gender bifurcated the worlds of elementary, middle and high school were and how difficult it could be simply to be yourself if your gender exceeded the norms associated with the sex you were assigned at birth. And I say that as one whose experience was much less difficult than what many trans folks grew up experiencing. Gavin Grimm, and indeed all of us, should be able to access the spaces and activities that reflect the gender he knows himself to be, that respect his human dignity. Thank you to the Presiding Bishop and the President of the House of Deputies for adding your voice and support to this important case and for standing with the trans community.

Excellent coverage of a complex set of issues, proud of our leadership who stand forward on behalf of those in our nation and world with the least voice and status to defend themselves. This is at the heart of the gospel and consistent with decades of evolving General Convention and Executive Council policy and study, drawing the circle of inclusion and grace ever wider. Bravo and brava.

Thank you very much for taking this stand. Despite these unpleasant comments I am confident that there are many Episcopalians, like me, who are please and proud to call you our leaders. To see you take a stand to support those in need is truly awesome. Keep up the good work!

Thank you for your support. I’ve been in this fight since I started my transition in 1993. I personally experienced bathroom issues 3 times since completing transition in 1995 most recently @ a Wal-Mart 6 weeks ago and my birth certificate has been corrected to female.

I think that the Western Church’s obsession with things sexual — first the definition of, basically, all sexual behavior as dirty and sinful then, recently, a rush to bend the gospel to support anything that anyone can ask or imagine in terms of matters sexual have been both been problematic. The former made the church look irrelevant, the latter, and most recent, makes us look trivial and politically partisan. Worse, I daresay, in this case. Actions like these make us look blasphemous — daring to speak for God on matters on which faithful Christian men and women — whatever their biology or self identification — can reasonably disagree. We are driving people away from our pews by taking, nationally, regionally, and locally, various stripes of one political agenda. Is not the gospel all sufficient? A newcomer in my church just this past Sunday arrived after moving to the area recently and trying out the nearest church to him. After two weeks of “Trump bashing” from the pulpit, he tried the next closest church……ours……where he heard a sermon on sin and redemption based on the gospel assigned to the day with no illustrations written by the NYT editorial board. Shouldn’t we try to be a roomy tent again, and leave politics behind? We can explain the decline away all we like as “part of a national trend away from church going” but the fact is that our denomination, after moving hard left in its public actions and proclamations has lost more than one third of its members and worshippers and have not — despite predictions — found new ones. The churches that are growing stick to the gospel. That is what the soul wants. Leave community organizing to the community organizers. They do a better job.

Once again the church leaders use Scripture to justify their position. Those of you that are disgruntled should vote with your wallet. If you disagree then why sit back and take whatever the church leadership serves up. You are a member of a lobbying organization! The greater church only survives because you all contribute every Sunday. Your church pays homage to the Diocese via an assessment and a pledge even though your church may not be meeting its budget, it’s due regardless. The assements cannot be rescinded and are not negotiable. Try it and the Dicese will defrock your priest, confiscate your church property and bank accounts. So in reality, you all are paying for this nonsense. If you are unhappy then find a small congregational church that does good works in your community. The Episcopal Church is in a death spiral. I expect the haters will retaliate with quotes from the Bible and call me “un-Christian” but that’s OK. It proves my point.

Bill: You speak an “unpleasant” truth for those who may choose not to kneel at the altar of political correctness.. At a legal cost in millions in pledge dollars, Bishop Bruno of the LA Diocese won his court battles for ownership of St. James the Great in Newport Beach, California after the orthodox congregation bolted, and he installed a new reverend with his promises of rebuilding the congregation in the image of the new church. When numbers were not sufficient to financially support the operating costs, he secretly sold the church for $15 million to a developer who planned to replace the sanctuary with luxury condos, and then “locked-out” the new congregation. The cash deal has now fallen through. The “amens” echoing from the pews in this beautiful church have been replaced by the muffled footsteps of spiders and mice while the forgotten congregation holds services in a nearby park.

Praise be to God? Really?? Let me see if I’ve got this right. The good Rev Jennings and our esteemed Presiding Bishop believe it is their “Christian duty” to force one’s daughter to see the genitals of a male student in the shower of the girls’ locker room because he believes he’s a female? This isn’t about civil rights or one’s dignity. This is, quite simply, insanity. The Bible calls Satan the father of lies and the progressive clergy in TEC are swallowing those lies hook line and sinker!

I disagree that this bathroom debate is a religious issue, a civil rights/equal protection issue, or a “moral issue.” It is a privacy and personal security issue.

It should be common sense that every person is entitled to privacy when using the restroom, changing, or showering. Individual privacy and security justify sex segregated bathrooms and locker rooms particularly for women who by biology and personal hygiene needs, are placed in vulnerable positions within restrooms or shower stalls. Most single-stall restrooms have a door which can be locked from the inside—for a good reason.

The Church would have the Federal Government compel schools to allow transgender students to use restrooms, showers and locker rooms with members of the opposite sex. My daughters and grand-daughters will never attend a public school that does this.

The Bishop’s brief ignores mention of privacy and safety concerns. There are many reported instances of where non-transgender identity men with cameras and voyeur tendencies, and worse intentions, have intruded into women’s restrooms. The posting of secretly obtained pictures on the internet is not uncommon. Every teenager has an iPhone and once a photo is posted on the internet, merely punishing the perpetrator cannot undue the public humiliation and damage.

The common sense solution may be to accommodate transgender students by the use of single-stall restrooms and showers so that their privacy and security can be protected as well. That is a local responsibility for the community and schools.

In my opinion, hiring lawyers and spending thousands of dollars on legal briefs purporting to speak on behalf of the entire membership on this divisive secular issue, and other partisan issues, is an unforgivable abuse of authority and pledge monies, and I have left the Church. I agree with Terry Francis that the voice whispering in the Bishop’s ear may not be God’s voice at all when the message is guaranteed to cause disharmony, dissention and a splitting of the Church.

Good grief! “Male and female created He them” (Gen. 1).
If the Bible doesn’t awe you, what about the science? You have 37 trillion cells, each of them either male or female. If I “self-identified” as a member of a race that a child can see I am not, sensible people would laugh. Well, He Who sits in the heavens laughs at the silliness of breaking still one more bond of God’s Kingship over a rebellious people (Ps. 2:3). When He is finished laughing, He will speak in His wrath and terrify in His fury those who rebel against His King (Ps. 2:4-6).
The Psalm concludes by advising we kiss the King (obey Him), and blessed are all who take refuge in Him (v. 12). The Gospel tells us this King is Jesus, who carried with Him to the Cross all our silliness, our cosmic treason, from which we are commanded to depart.

Don’t try to use science to justify your prejudices. Your knowledge of genetics and cellular physiology is woefully inadequate for the task. (Hint: Cells have neither a “sex” nor a “gender”; those concepts are appropriate only at the organismal level.)

Try searching the Internet for “genetic chimera”. And do some reading in basic developmental physiology while you are at it.

And if you truly believe GOD cannot create a male physical body and put the soul of a woman into it, or that GOD would never, ever, do such a thing, then I don’t think your Biblical and theological scholarship is up to snuff, either.

Diane: Unisex single-user bathrooms are common. The conundrum is how to respect the rights and privacy of the transgender identity student(s) AND also respect the privacy, safety and modesty rights of women. The practical effect of the ruling sought by the Bishop’s brief under Title IX (equality for women’s sports) and Constitutional equal protection would create an unfunded mandate that all public schools and colleges must allow transgender identity men/boys to use the existing women’s communal locker rooms and showers unless they construct single user bathroom/shower stalls to accommodate transgender identity students. If this is the ultimate ruling, then it logically follows that transgender identity men / boys must also be allowed to participate on women’s athletic teams.

I once again find myself in strong disagreement with the leadership of the Episcopal church. I have been a part of the church all my life and have watched it become less and less about faith and religion, and more and more about secular human politics.

I am disappointed that PB Curry doesn’t see the distraction created by this Amicus Brief. He begins well with the gospel of evangelism but his ministry may not be marked by the call of God to this sacred calling, but by the powers he has helped place in the hands of the federal government. When will this church stay out of Caesars business?